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CARL ZOLLMANN 




CHURCH AND SCHOOL 



in the 



AMERICAN LAW 



BY 



CARL ^OLLMANN 

Member of the Chicago Bar, Author of "American Civil Church Lai 




St. Louis, Mo. 
concordia publishing house 

1918 



Copyright, 1918 

BT 

CARL ZOLLMANN 



OCI.A499711 
JUL I5I9IB 



>'^. 



Church and School in the American Law. 

The public school system of the United States can be traced 
back 'to the first settlement in Massachusetts. Judge Shaw of the 
Massachusetts Supreme Court in 1845 said : "The establishment 
of schools for the education, to some extent at least, of all the 
children of the whole people, is not the result of any recent enact- 
ment ; it is not the growth even of our present constitutional 
government or the provincial government which preceded it, but 
extends back two hundred years, to the early settlement of the 
colony." ^) It is recorded that as early as 1650 a certain town in 
Massachusetts made a grant to certain individuals at a general 
town-meeting "for the use of the school." 2) Grants to newly 
founded towns for public grammar schools and public education 
in general for the ministry and for the first settled minister,^) or 
grants for a glebe, for the first settled minister and for a school,'^) 
were common in those days. State and church, town and parish, 
secular and religious matters, of course, were not kept separate. 
The towns acted not only as towns, but also as parishes, performing 
Avith the same organization and by the same officers both municipal 
and parochial duties. Hence it frequently became difficult to 
determine when they acted in the one capacity and when in the 
other. Very often the only criterion was the character of the 
act done. If it fell within the province of the town, it was deemed 
municipal; if within the province of the parish, it was deemed 
parochial. There was frequently only one set of records, in which 
were indiscriminately blended acts and votes of both characters.^) 
When such towns made provision for religious instruction, they 
were as beneficially interested as when they voted and assessed 
money for the support of schools.^) Not infrequently the settled 



1) 1845, Gushing v. Newbnryport, 51 Mass. (10 Met.), 508. 511; quoted 
in 1867, Jenkins v. Andover, 103 Mass., 94. 98. 

2) 1844, Grammar School v. Andrews, 49 Mass. (8 Met.), 584. 

3) 1839, State v. Cutler, 16 Me., 349. 

4) 1815, Pawlet v. Glark, 13 U. S. (9 Granch), 292, 3 L. Ed., 735. 

5) 1837, Ludlow v. Sikes, 36 Mass. (19 Pick.), 317. 322. 323. 

6) 1824, Alna v. Plummer, 3 Me., 88. 



minister of a town would act also as teacher, being thus engaged 
by the town in both of its capacities. The same officials also would 
frequently administer both the ministerial and the school-funds.^) 
That such funds under such circumstances would not be kept 
separate was but a natural consequence. This is strikingly illus- 
trated by Connecticut, which for a long time carried on its schools 
through the agencies of "societies." Under a statute of 1795 money 
belonging to such a society for school purposes could, on a two- 
thirds vote of it, be appropriated "for the support of the Christian 
ministry or the public worship of God." 8) Under such an arrange- 
ment such a society clearly had the right to such funds and their 
interest, "to be applied to the support of schooling, or of the 
ministry in said society, at their discretion and pleasure." ^) That 
legal difficulties should arise out of such a fusion of interests, 
particularly at the time when town and parish parted company, 
was to be expected.!*^) Even Congress, after the Declaration of 
Independence, in the case of Ohio, made a grant partly for school 
and partly for religious purposes. ^^) 

These faint beginnings of a public school system, however, 
did not satisfy the needs of our forefathers. Accordingly, private 
schools connected with dissenting churches, or secular organiza- 
tions, or founded by charitable donations, or conducted as down- 
right business ventures, came into existence, and flourished and 
decayed according to circumstances. In some cases such schools 
received a subsidy from the town or city in which they were located, 
and thus assumed somewhat like a semi-official character.^^) With 
the advent of the public school system under the leadership of 
Horace Mann, during the two decades preceding the Civil War, 
such schools, so far as they were business ventures, were generally 
crushed out of existence, and, so far as they were connected with 
secular organizations, were voluntarily given up, having served 
their purpose. So far as they were charities, they were generally 

7) 1835, Button v. Kendrick, 12 Me. (3 Fairf.), 381. 384. 

8) 1896, Cargel v. Grosvenor, 2 Root 458 (Conn.). 

9) 1794, Sage v. White, 2 Root 111 (Conn.). 

10) 1837, Ludlow v. Sikes, 36 Mass. (19 Pick.), 317. 326. 327. 1838, 
Medford v. Medford, 38 Mass. (2LPick.), 199. 1851, First Parish in Sud- 
bury V. Jones, 62 Mass., 184. 

11) 1841, State v. Trustees of Section 29, 11 Ohio, 24. Section 1, Ar- 
ticle 6, Ohio Constitution of 1851, speaks of property entrusted to the State 
"for educational and religious purposes." 

12) 1885, Busby v. Mitchell, 23 S. C, 472. 



absorbed into the public school system. The so-called cy pres\ 
doctrine was applied to them to save the gift and adapt it to 
the changed conditions.^^) Nothing generally was nearer to the 
presumed intentions of the donors than was the public school 
system.^'*) The courts, therefore, were delighted to carry out the 
general intentions of donors by appointing the public school 
authorities as trustees of such property ^^) by authorizing long- 
time leases of such property to them,i^) by merging charities created 
for the purpose of educating certain children in agricultural and 
mechanical arts with the public school system,!'^) by applying a gift 
to establish a female academy in a certain place to the support of 
the local public school established for the education of both sexes,^^) 
and even by establishing a library with the funds provided by the 
gift.i^) When Maine became a State, a great variety of acts and 
resolves of Massachusetts passed in pursuance of the policy of 
appropriating land for public purposes were found to be applicable 
to its territory. It was deemed impracticable and inexpedient to 
carry all these purposes into literal effect. While the charities 
were upheld, they were turned as much as possible into the channels 
of the public schools.^*^) 

Nor did denominational schools generally fare better in this 
regard. While church institutions of higher education generally 
retained their hold, denominational primary schools in most cases 
voluntarily yielded themselves up to the public schools and were 
merged into them. The means by which these changes were 
effected were, of course, as various as the circumstances which 
surrounded them. The public authorities in many cases simply 



13) 1896, In re John's Will, 30 Oreg., 494. 509; 47 Pac, 341; 50 Pac, 
226; 36 L. R. A., 242. 1895, Attorney General v. Briggs, 164 Mass., 561; 
42 N. E., 118. 1896, Green v. Blackwell, 35 Atl., 375. 376 (N. J.). 

14) 1849, Klinkener v.. School Directors, 11 Pa., 444. 447. 

15) 1915, Lakatong Lodge v. Franklin TowTiship, 84 N. J. Eq., 112. 116; 
92 Atl., 870. 

16) 1894, Madison Academy v. Richmond, 16 Ky. Law Rep., 51; 
26 S. W., 187. 

17) 1912, Mars v. Gibert, 93 S. C, 455. 467; 77 S. E., 131. 

18) 1889, Adams Female Academy v. Adams, 65 N. H., 225; 18 Atl., 
777. See 1906, Inglish v. Johnson, 42 Tex. Civ. App., 118. 123; 95 S. W., 
558; contra 1910, Allen v. Nasson Institute, 107 Me., 120. 123; 77 Atl., 638. 

19) 1880, In re Lower Dublin Academy, 8 Weekly Notes Cases, 564 
(Pa.). 

20) 1883, Union Parish Society v. Upton, 74 Me., 545. 



took over the buildings, the school facilities, the pupils, and the 
teachers with or without any formal contract,^!) and for a while 
at least conducted them in very much the same manner in which 
they had been conducted before the change. Among other customs 
the saying of Protestant prayers, the singing of Protestant hymns, 
and the reading of the Bible was continued in many of these 
schools, just as if nothing at all had happened. In other instances, 
particularly in the newer States, the public schools were completely 
secularized, and the reading of the Bible, the saying of prayers, and 
the singing of religious hymns was discontinued completely. 

It was this feature which is primarily responsible for the 
fact that one church — the Eoman Catholic — staunchly retained 
its parochial school system built up during the time when there 
were no public schools in the i^resent-day acceptation of that term. 
Such schools, whether they retained the reading of the Bible, the 
saying of prayers, and the singing of religious hymns, or whether 
they abolished these customs, were about equally objectionable to 
the Church of Eome. In the first case it was the Protestant Bible 
that was read, it was Protestant hymns that were sung, and it was 
Protestant prayers that were uttered. In the second case it was 
felt that a godless school could not but produce a godless generation 
of men and women. With great determination the Catholics there- 
fore now assumed the double burden of supporting not only their 
own schools, but also the public school system, which was rapidly 
growing in size. 

It was but natural, however, that great dissatisfaction with 
this situation should be felt. Attempts to bring about some modi- 
fication of it were therefore to be expected. These, while they 
scored some local successes, could not assume national importance 
during the long-drawn-out debate which preceded the Civil War, 
during the four years of that conflict, and during the Eecon- 
struction Period which followed immediately after. It was not till 
President Grant's second administration that such attempts were 
made on a grand scale. The matter was taken up by Catholic 
journals, and the Catholic side of it was presented with great 
ability by many writers.^^) In a number of the larger cities changes 
of one kind or another were actually effected. The Democratic 
party was used as the silent instrument of this propaganda. This 
made the question a national political issue, and as such it was 

21) 1862, Pott V. Pottsville, 42 Pa. (6 Wright), 132. 

22) See Hecker, Catholics and Education, published in 1875. 



taken up by the Republican party. At a convention of the Army 
of the Tennessee, assembled at Des Moines, Iowa, on September 29, 
1875, President Grant countered to the agitation by saying : — 

The centennial year of our national existence, I believe, is a good 
time to begin the vpork of strengthening the foundations of the 
structure commenced by our patriotic forefathers one hundred years 
ago at Lexington. Let us all labor to add all needful guarantees for 
the security of free thought, free speech, a free press, pure morals, 
unfettered religious sentiments, and of equal rights and privileges 
to all men, irrespective of nationality, color, or religion. Encourage 
free schools, and resolve that not one dollar appropriated for their 
support shall be appropriated to the support of any sectarian schools. 
Resolve that neither the State nor nation, nor both combined, shall 
support institutions of learning other than those sufficient to afford 
every child growing up in the land the opportunity of a good common- 
school education, unmixed with sectarian, pagan, or atheistical dogmas. 
Leave the matter of religion to the family altar, the church, and the 
private school, supported entirely by private contributions. Keep 
the Church and the State forever separate. With these safeguards, 
I believe the battles which created the Army of the Tennessee will 
not have been fought in vain.23) 

This blow at the movement the President appropriately fol- 
lowed up in his seventh annual message delivered to Congress, 
December 7, 1875, in which to "oppose a successful resistance to 
tyranny and oppression from the educated few, . . . whether directed 
by the demagog or by priestcraft," he suggested, and most earnestly 
recommended, as the primary step to our advancement in all that 
has marked our progress in the past century, 

that a constitutional amendment be submitted to the legislatures of 
the several States for ratification, making it the duty of each of 
the several States to establish and forever maintain free public 
schools adequate to the education of all the children in the rudi- 
mentary branches within their respective limits, irrespective of sex, 
color, birthplace, or religions ; forbidding the teaching in said schools 
of religious, atheistic, or pagan tenets, and prohibiting the granting 
of any school-funds, or school-taxes, or any part thereof, either by 
legislative, municipal, or other authority, for the benefit or in aid, 
directly or indirectly, of any religious sect or denomination.24) 

This message brought another great national figure into the 
controversy. James G. Blaine was then the leader of the House, 
and was soon to become known on account of his magnificent per- 
sonality as the "plumed knight." The famous alliteration, "Rum, 
Romanism, and Rebellion," through which he was defeated by 



23) Hecker, Catholics and Education, 180; Sevett, American Public 
Schools, 72. 

24) Congressional Record, Vol. 4, Part 1, p. 175. 



Grover Cleveland for the Presidency in 1884, has come echoing 
down the corridors of time. Exactly a week after President Grant 
had submitted his message, he introduced before the House of 
Eepresentatives a joint resolution to amend the Constitution of 
the United States by adding thereto the following provision : — 

JSTo State shall make any law respecting an establishment of 
religion or prohibiting the free exercise thereof ; and no money raised 
by taxation in any State for the support of public schools, or derived 
from any public fund therefor, nor any public lands devoted thereto, 
shall ever be under the control of any religious sect, nor shall any 
money so raised or lands so devoted be divided between religious sects 
or denominations.25) 

The question was now before the country for discussion. The 
famous Tilden-Hayes campaign of 1876, which was to bring the 
country to the verge of another Civil War, was coming on, and the 
controversy now became one of its issues. While the Democratic 
platforms of 1876, both State and national, contained no allusion 
to it, a number of Eepublican State platforms referred to it in no 
uncertain terms, while the Eepublican National Convention of 
that year, assembled at Cincinnati, adopted the following plank 
as part of its platform : — ■ 

The public school system of the several States is the bulwark of 
the American Republic; and with a view to its security and perma- 
nence, we recommend an amendment to the Constitution of the 
United States forbidding the application of any public funds or 
property for the benefit of any school or institution under sectarian 
control.26) 

It was under these circumstances, while the political canvass 
of 1876 was in progress, that the Blaine resolution came to a vote 
in the House on August 4th. As voted on, it was not identically 
the same as submitted, the principal change being the addition of 
a clause to the effect that the provision was not to "vest, enlarge, 
or diminish legislative powers in the Congress." ^7) It was passed 
by an overwhelming majority, one hundred and eighty members 
voting for and only seven against it, while ninety-eight members 
abstained from voting. When, however, it reached the Senate 
three days later, it was at once pointed out that it lacked either 
honesty or intelligence, because it left the National Government 
free to act as it pleased, and only prohibited, after a fund had been 

25) Ibid., p. 205. 

26) Paragraph 7, Platform of the Republican National Convention 
of 1876. 

27) Congressional Record, Vol, 4, Part 6, p. 5190. 



raised for, or land donated to, public school purposes, the diversion 
of such fund or land to sectarian purposes,^^) leaving the States 
free to devote other public funds or other public lands to church 
purposes. Accordingly, the resolution was referred to the Com- 
mittee on the Judiciary, which promptly reported it back on 
August 11th in an amended form, which in part reads as follows : — 

No public property and no public revenue of, nor any loan of 
credit by or under the authority of, the United States, or any State, 
Territory, District, or mimicipal corporation, shall be appropriated to, 
or made or used for, the support of any school, educational or other 
institution under the control of any religious or antireligious sect, 
organization, or denomination, or wherein the particular creed or 
tenets of any religious or antireligious sect, organization, or denomina- 
tion shall be taught. And no such particular creed or tenets shall be 
read or taught in any school or institution supported in whole or in 
part by such revenue or loan of credit, and no such appropriation 
or loan of credit shall be made to any religious or antireligious sect, 
organization, or denomination, or to promote its interests or tenet8.29) 

It is entirely clear that this amendment had bristles, horns, 
teeth, and claws, while the resolution as voted on in the House 
was very largely iii the nature of political camouflage, quite un- 
objectionable to the one side, but having the appearance of satis- 
fying the demands of the other. It resulted on August 14, 1876, 
in a partisan vote, twenty-seven Republican senators and one "anti- 
monopolist" voting for it, and sixteen Democratic senators voting 
against it, while twenty-seven senators were absent, and was lost 
because a two-third majority is required for the passage of such 
resolutions. ^"^^ With it the agitation for a Federal amendment in 
regard to this matter has come to an end, though President Grant, 
in his eighth and last message to Congress in the following Decem- 
ber, repeated his recommendation for such an amendment. 

But while no amendment to the Federal Constitution has 
resulted from the agitation, it must not be supposed that it has had 
no definite consequences. On the contrary, its results have been 
of the most far-reaching character. As a sequel of this movement 
nine of the ten States since admitted into the Union have been 
required, as a condition of admission, to provide by an ordinance 
irrevocable, without the consent of the United States and the people 
of the new State, that provision shall be made "for the establish- 
ment and maintenance of systems of public schools, which shall 
be open to all children of said State and free from sectarian con- 
trol," and eight of these States have literally complied with this 

28) Hid., pp. 5245. 5246. 29) lUd., p. 5453. 30) lUd., p. 5595. 



10 

condition.3i) This compact more effectually protects the public 
school system from sectarian inroads than do the few scattered 
constitutional provisions which antedate the controversy, and are 
similar in their general scope to it, substantially providing that 
no religious sect shall ever control any part of the State school- 
funds.32) The word "sectarian" in such and similar provisions, 
of course, is used in its popular sense, and covers every denomina- 
tion, and forbids the use of public funds, directly or indirectly, 
for the support or building up of any church.33) Under such pro- 
visions Church and State are effectually separated. The former 
must pursue its mission without aid from the latter. "Any scheme, 
even though hallowed by the blessing of the Church, that surges 
against the will of the people as crystallized into their organic law, 
must break in pieces, as breaks the foam of the sea against the 
rock on the shore." ^) 

The reason why sectarian control of the public schools has 
thus been prohibited is not far to seek. Such control will inevitably 
result in the use of public money for sectarian purposes, either by 
inculcating sectarian tenets in the public schools, or by using the 
public school funds for the support of sectarian schools. Both 
these specific results of sectarian control have therefore been specif- 
ically interdicted by a number of State constitutions. 

Only two States before 1875 had provisions specifically for- 
bidding sectarian instruction in the public schools. The Wisconsin 
constitution, adopted in 1848, made it obligatory on the legislature 

31) Such condition has been incorporated into the various enabling 
acts. The following are the names of the States that have been affected 
by this policy, and a reference to the place in their constitution in which 
they have accepted such proposition: Arizona (1912), Art. 20; Montana 
(1889), Ordinance attached to Constitution; New Mexico (1912), Art. 21, 
Sec. 4; Oklahoma (1907), Schedule attached to Constitution; see Art. 1, 
Sec. 5; South Dakota (1889), Art. 22; Art. 26, Sec. 18; Utah (1895), 
Art. 3; see Art. 10, Sec. 1; Washington (1889), Art. 26; see Art. 9, Sec. 4; 
Wyoming (1889), Art. 21, Ordinance, Sec. 5. The same condition was im- 
posed on North Dakota, and was fulfilled by its constitution of 1889, though 
not in the form of a compact. Art. 8, Sec. 147. The constitution of Idaho 
(1889) does not contain this provision; see Art. 21, Sec. 19. 

32) Kansas (1859), Art. 6, Sec. 8; Nebraska (1866), Art. 2, Title: 
Education, Sec. 1; Ohio (1851), Art. 6, Sec. 2; readopted in 1912, Art. 6, 
Sec. 2; Mississippi (1868), Art. 8, Sec. 9; substantially readopted in the 
constitution of 1890, Sec. 208. 

33) 1882, State v. Hallock, 16 Nev., 373. 385. 387. 

34) 1888, Cook County v. Industrial School for Girls, 125 111., 540. 
563; 18N. E., 183; 8 Am. St. Rep., 386; 1 L. R. A., 437. 



— 11 — 

to provide by law for the establishment of District Schools, and 
laid it down that "no sectarian instruction shall be allowed 
therein." ^) The Nevada constitution, adopted during the Civil 
War, provided that "no sectarian instruction shall be imparted or 
tolerated in any school or university that may be established under 
this constitution." ^6) ^g g^ direct result of the agitation such pro- 
visions have now become more numerous. It will, however, not 
be profitable to set them out in full as they vary only in phraseology. 
They are substantially copies from the Nevada provision above 
cited. Their shorter form is exemplified by the Colorado consti- 
tution, adopted in 1876, which is as follows : "No sectarian tenets 
or doctrines shall ever be taught in the public schools," ^7) and 
has been substantially copied by the Montana ^) and Idaho 39) con- 
stitutions. A somewhat longer form is in force in South Dakota, 
California, Arizona,"^*^) and Nebraska. The latter is fairly repre- 
sentative of the others and reads as follows : "No sectarian 
instruction shall be allowed in any school or institution supported 
in whole or in part by the public funds set apart for educational 
purposes." '^^) The Wyoming f onstitution is the most explicit, 
providing, as it does, that no sectarian instruction shall be imposed, 
exacted, applied, or in any manner tolerated in the schools of any 
grade or character controlled by the State, nor shall any sectarian 
tenets or doctrines be taught or favored in any public school or 
institution that may be established under the constitution.'*^) 

Turning now to the other side of the question, it must be 
admitted that constitutional provisions forbidding the granting 
of public funds for sectarian schools were comparatively more 
numerous before 1875. The Massachusetts constitution, as amended 
in 1855, provided that 

all moneys raised by taxation in the towns and cities for the support 
of public schools, and all moneys which may be appropriated by the 
State for the support of common schools, shall be applied to, and 
expended in, no other schools than those which are conducted 
according to law, under the order and superintendence of the authori- 



35) Wisconsin (1848), Art. 10, Sec. 3. 

36) Nevada (1864), Art. 11, Sec. 9. 

37) Colorado (1876), Art. 9, Sec. 8. 

38) Montana (1889), Art. 11, Sec. 9. 

39) Idaho (1889), Art. 9, Sec. 6. 

40) South Dakota (1899), Art. 8, Sec. 16; see Art. 6, Sec. 3; Cali- 
fornia (1879), Art. 9, Sec. 8; Arizona (1912), Art. 11, Sec. 7. 

41) Nebraska (1875), Art. 8, Sec. 11. 

42) Wyoming (1889), Art. 7, Sec. 12. 



12 

ties of the town or city in which, the money is to be expended; and 
such moneys shall never be appropriated to any religious sect for 
the maintenance, exclusively, of its own school.^) 

This amendment was adopted because of a deep-seated con- 
viction of the impressive necessity of preserving the public school 
system in its integrity and of guarding it from attack or change 
by explicit mandate, but does not refer to colleges and universi- 
ties.'^^) Under it a privately endowed high school, whose trustees 
are three clergymen and five members of such clergymen's congre- 
gations (to be chosen by the town), in which no sectarian influence 
is to be used, but in which the Bible is to be in daily use, and in 
which the Lord's Prayer is to be audibly uttered each morning 
by teachers and pupils, has been held not to be a public school, 
so as to be in a position to be aided by taxation.^S) Similarly the 
constitutions of five western or middle western States provided that 
no money was to be drawn from the public treasury for the benefit 
of any religious or theological institution,^'^) or any religious soci- 
eties, or religious or theological seminaries,*^) or any religious sect 
or society, theological or religious seminary.^^) 

What existed in the nature of such constitutional provisions 
before the school agitation, however, was slight as compared with 
what was produced in consequence of it. Three States, New Hamp- 
shire, Minnesota, and Nevada, the first two in 1877, the last in 1880, 
accomplished the desii-ed results by a constitutional amendment. 
Illinois, Pennsylvania, and Missouri acted as early as 1870, 1873, 
and 1875, respectively, accomplishing their purpose through new 
constitutions. Texas, Colorado, and California had acted before 
1880. Florida followed in 1885, and Idaho, Montana, North Dakota, 
Washington, and Wyoming took the same action in 1889. Missis- 
sippi ushered in the last decade of the last century by falling in 
line in 1890, and was joined by Kentucky, New York, South 
Carolina, Utah, and Delaware before the dawn of the new century. 
Alabama was the first to act in the twentieth century, and found 
worthy successors in Oklahoma, New Mexico, New Hampshire, and 

43) Massachusetts Constitution, ISth Amendment. 

44) 1913, In re Opinion of Justices, 214 Mass., 599. 601. 102 N. E., 464. 
' 45) 1869, Jenkins v. Andover, 103 Mass., 94. 

46) Indiana (1851), Art. 1, Sec. 6; Oregon (1857), Art. 1, Sec. 5. 

47) Wisconsin (1848), Art. 1, Sec. 18; Minnesota (1857), Art. 1, 
Sec. 16. 

48) Michigan (1850), Art. 4, Sec. 40. This provision was readopted 
in the constitution of 1908, Art. 2, See. 3. 



13 

Louisiana. Only one of the States which acted during these many 
years favored the opposing view. The constitution of Georgia, 
adopted in 1877 and still in force, provides that nothing contained 
in its public school provisions shall be construed to deprive schools 
of the State not common schools "from participation in the edu- 
cational fund of the State, as to all pupils therein taught in the 
elementary branches of an English education." ^9) Georgia there- 
fore, outside of Maine, whose constitution was adopted in 1819, 
and which makes it the duty of the legislature "to encourage and 
suitably endow from time to 'time, as the circumstances of the 
people may authorize, all academies, colleges, and seminaries of 
learning within the State," ^^) is now the only State which by its 
fundamental law in terms permits the use of public funds for 
sectarian purposes. It has therefore been said with complete truth 
that "the policy of prohibiting the use of funds belonging to all 
for the benefit of one or more religious sects has been adopted in 
most of the States." ^^) 

The very first State to take action in this matter was Illinois. 
The school agitation was in its early infancy when the State adopted 
a new constitution in 1870. In it it was provided that 

neither the general assembly nor any county, city, town, township, 
school, district, or other public corporation shall ever make any appro- 
priation, or pay from any public fund whatever, anything in aid of any 
church or sectarian purpose, or to help support or sustain any school, 
academy, seminary, college, university, or other literary or scientific 
institution, controlled by any church or sectarian denomination what- 
ever; nor shall any grant or donation of land, money, or other per- 
sonal property ever be made by the State or any such public corpora- 
tion to any church or for any sectarian purpose.^^) 

This provision proved to be so popular that it was copied with 
immaterial variations by Missouri in 1875,^3) by Colorado in 1876,^) 



49) Georgia (1877), Art. 8, Sec. 5. But see Art. 1, Sec. 1, Par. 14, 
which provides that "no money shall ever be taken from the public treas- 
ury, directly or indirectly, in aid of any church, sect, or denomination of 
religionists, or of any sectarian institution." See also 1909, Wilson v. Stan- 
ford, 133 Ga., 483; 66 S. E., 258. 

50) Maine (1819), Art. 8. 

51) 1891, Synod of Dakota v. State, 2 S. D., 366. 373; 50 N. W., 632; 
14 L. R. A., 418. 

52) Illinois (1870), Art. 8, Sec. 3. 

53) Missouri (1875), Art. 11, Sec. 11. 

54) Colorado (1876), Art. 9, Sec. 7. 



14 

by California in 1879,55) by Montana ^) and Idaho 57) in 1889, and 
by Utah in 1895.58) jn view of this fact the construction which 
it has received at the hands of the Illinois court is of the greatest 
interest. 

It is perfectly apparent that this provision is a check on the 
public financial officers of the State and its subdivisions, which is 
self-executing, and which, therefore, requires no legislation to 
make it effective.5S^) It is equally clear that it applies only to funds 
belonging to public corporations, and is intended to prohibit the 
use, for sectarian or religious purposes, of funds which form a part 
of the public revenues of the State.^O) Since its second part refers 
to ^'grants or donations," the provisions of the first part against 
any appropriation or payment "from any public fund whatever" 
is not intended to refer merely to gratuities, but to cover eases 
where a quid pro quo is given. The court says that if denomina- 
tional institutions "are entitled to be paid out of the public funds, 
even though they are under the control of sectarian denominations, 
simply because they relieve the State of a burden which it would 
otherwise be itself required to bear, then there is nothing to prevent 
all public education from becoming subjected, by hasty and unwise 
legislation, to sectarian influences." ^^ It has therefore been held 
that Catholic asylums in which there are morning and evening 
prayers according to the Catholic religion, in which the familiar 
Catholic images are in evidence on every hand, and in which all 
inmates. Catholic or otherwise, are required to kneel at certain 
times and places, are schools controlled by a church within the 
provision, that a contract by a county to pay money out of the 
public funds "in aid" of them, or to "help suppor-t or sustain" 
them, is absolutely void, since the constitutional prohibition against 
paying money is equally a prohibition against a contract for such 
payment, and that the mere fact that the payment is made to an 
"industrial school," a separate corporation, controlled, however, by 

55) California (1879), Art. 4, Sec. 30. 

56) Montana (1889), Art. 11, Sec. 8. 

57) Idaho (1889), Art. 9, Sec. 5. 

58) Utah (1895), Art. 10, Sec. 13. 

59) 1888, Cook County v. Industrial School for Girls, 125 111., 540; 
18 N. E., 183; 8 Am. St. Rep., 386; 1 L. R. A., 437. 

60) 1910, Stead v. Commons of Kaskaskia, 243 111., 239. 263: 90 N. E., 
654. 

61) 1888, Cook County v. Industrial School for Girls, 125111., 540. 570. 
571; 18N. E., 183; 8 Am. St. Rep., 386; 1 L. R. A., 437. 



15 

the same persons as are the asylums, is immaterial, since such school 
is acting as the mere disbursing agent of the asylums.^^) ^he same 
holding has been made in regard to a Catholic training-school, the 
facts being substantially the same, the school being in part a prose- 
lyting agency, accepting both Catholic and non-Catholic inmates, 
and strongly tending toward graduating its non-Catholic proteges 
into the Catholic Church.63) A far closer question has recently 
been presented in connection with an industrial school which 
accepted only Catholic children. _ The court in this case has held 
that the religious liberty of such inmates would be violated if they 
were not allowed to receive the same denominational education in 
the institution which they would have received at home. Hence 
it has held that an appropriation of $15 per month for each 
inmate, while $28.88 is required for the same purpose at a similar 
State institution, is not void as being given "in aid of any church 
or sectarian purpose or to help support or sustain any school," and 
that it is the State, and not the industrial school, which is benefited 
by the payment of less than the cost of food, clothing, medical care, 
attention, education, and training bestowed upon such inmates.^) 
The other provisions can be more or less readily disj)osed of, 
being all identical in purpose, though varying considerably in 
form. In four States — Pennsylvania, Texas, Florida, and South 
Dakota — there are separate provisions, one forbidding all appro- 
priations for the benefit of any sectarian or religious society or 
institution,'^^) or any sect or religious society, theological or reli- 
gious seminar}^,'^^) or any denominational or sectarian institution, 
corporation, or association,*^^) or in aid of any church, sect, or 
religious denomination, or sectarian institution,68) while the more 
specific provisions forbid the appropriation of money raised for 
the support of the public schools of the Commonwealth ^9) or the 
permanent or available school-fund,''^) as well as the County or 



62) 1888, Cook County v. Industrial School for Girls, 125 111., 540. 558. 
565; 18 N. E., 183; 8 Am. St. Rep., 386; 1 L. R. A., 437. 

63) 1893, Stevens v. St. Mary's Training-school, 144 111., 336; 32 N. E., 
962; 18 L. R. A., 832; 36 Am. St. Rep., 438. 

64) 1917, Dunn v. Chicago Industrial School, 280 111., 613; 117 N. E., 
735. 

65) South Dakota (1899), Art. 6, Sec. 3. 

66) Texas (1876), Art. 1, Sec. 7. 

67) Pennsylvania (1873), Art. 3, Sec. 18. 

68) Florida (1885), Declaration of Rights, Sec. 6. 

69) Pennsylvania (1873), Art. 10, Sec. 2. 

70) Texas (1876), Art. 7, Sec. 5. 



16 

District school-funds/^) or more generally, any lands, money, or 
other property or credits/'^) for the support or in aid of any sec- 
tarian school. 

The limitation of the operation of some of these provisions to 
school-funds or money raised for school purposes is practically 
rendered innocuous by the other more general provisions in the 
same instruments. This, however, cannot be said of some other 
States whose constitutions merely forbid the appropriation of 
money raised by taxation '^3) or for the support of the public 
schools '^4) for the use of sectarian schools, leaving other funds not 
raised by taxation, or even money raised by taxation, but not 
specifically for the support of the public schools, to be disposed of 
according to an unlimited discretion. The same holds good in 
regard to the constitutions of Delaware and New Mexico, which, 
respectively, are as follows : — 

]^o portion of any fund now existing, or which may hereafter be 
appropriated or raised by tax for educational purposes, shall be appro- 
priated to, or used by, or in aid of, any sectarian, church, or denomi- 
national school.^5) 

'No part of the proceeds arising from the sale or disposal of any 
lands granted to the State by Congress, or any other funds appro- 
priated, levied, or collected for educational purposes, shall be used 
for the support of any sectarian, denominational or private school, 
college, or university .^6) ^ 

The remaining provisions are clear and comprehensive, though 
using different expressions, such as money ,''"^) public money ,'^^) public 
money or property ,''9) money of the State,80) any funds,^!) public 
funds of any kind or character whatever. State, county, or munic- 



71) Florida (1885), Art. 12, Sec. 13. 

72) South Dakota (1899), Art. 8, Sec. 16. 

73) New Hampshire (1912), Art. 82. This is merely a readoption of 
the amendment of 1877. 

74) Alabama (1901,), Sec. 263; North Dakota, Art. 8, Sec. 152; 
Louisiana (1913), Art. 253. But see Art. 53. 

75) Delaware (1897), Art. 10, Sec. 3. 

76) New Mexico (1911), Art. 12, Sec. 3. 

77) Missouri (1875), Art. 2, Sec. 7. 

78) California (1879), Art. 9, Sec. 8. 

79) Arizona (1912), Art. 2, Sec. 12; Minnesota (1857), Art. 8, Sec. 3; 
Oklahoma (1907), Art. 2, Sec. 5; Utah (1895), Art. 1, Sec. 4; Washing- 
ton (1889), Art. 1, Sec. 11. 

80) Wyoming (1889), Art. 1, Sec. 19. 

81) Mississippi (1890), Sec. 208. 



17 

ipal,^^) and forbidding their appropriation for sectarian purposes ^^) 
for the use, benefit, or support of any sectarian institution as 
such ^^) to any denominational or sectarian institution or associa- 
tion,85) to any sectarian or religious society or institution,^*^) to any 
religious worship, exercise, or instruction, or for the support of 
any religious establishment ^7) in aid of any church, sect, or denomi- 
nation of religion, or in aid of any priest, preacher, minister, or 
teacher thereof as such,^'^) toward the support of any sectarian 
schooljS^J for the support of any sectarian or denominational 
school,^*^) or for the support of schools wherein the distinctive doc- 
trines, creeds, or tenets of any particular Christian or other religious 
sect are promulgated or taught.''^) Their spirit is reflected by the 
New York, South Carolina, and Oklahoma constitutional provisions, 
which, respectively, are as follows : — 

Neither the State nor any subdivision thereof shall use its 
property or credit or any public money, or authorize or permit either 
to be used, directly or indirectly, in aid or maintenance, other than 
for examination or inspection, of any school or institution of learning 
wholly or in part imder the control or direction of any religious 
denomination, or in which any denominational tenet or doctrine is 
taught.92) 

The property or credit of the State of South Carolina, or of 
any county, city, town, township, school district, or other subdivision 
of the said State, or any public money, from whatever source derived, 
shall not, by gift, donation, loan, contract, appropriation, or other- 
wise, be used, directly or indirectly, in aid or maintenance of any 
college, school, hospital, orphan house, or other institution, society, 
or organization, of whatever kind, which is wholly or in part under 
the direction or control of any church or of any religious or sectarian 
denomination, society, or organization.93) 

No public money or property shall ever be appropriated, applied, 
donated, or used, directly or indirectly, for the use, benefit, or support 



82) Nevada (1864), Art. 11, Sec. 10. This amendment was adopted 
in 1880. 

83) Nevada (1864), Art. 11, See. 10. This amendment was adopted 
in 1880. 

84) Oklahoma (1907), Art. 2, Sec. 5. 

85) Colorado (1876), Art. 5, Sec. 34. 

86) Wyoming (1889), Art. 1, Sec. 19. 

87) Arizona (1912), Art. 2, Sec. 12; Utah (1895), Art. 1, Sec. 4; 
Washington (1889), Art. 1, Sec. 11. 

88) Missouri (1875), Art. 2, Sec. 7. 

89) Mississippi ( 1890), Sec. 208. 

90) California (1879), Art. 9, Sec. 8; Kentucky (1891), par. 189. 

91) Minnesota (1857), Art. 8, Sec. 3. Amendment adopted 1877. 

92) New York (1894), Art. 9, See. 4. 

93) South Carolina (1895), Art. 11, Sec. 9. 



18 

of any sect, church, denomination, or system of religion, or for the use, 
benefit, or support of any priest, preacher, .minister, or other religious 
teacher or dignitary, or sectarian institution as such.94) 

Three of these constitutional provisions have been construed 
by the courts. It hardly need be mentioned that they are self- 
executing, and therefore require no legislation to make them 
operative. Under the Nevada provision an orphan asylum which 
received Catholics and Protestants, and in which Catholic exercises 
were held, at which all the inmates were required to be present, 
has been held not to be entitled to take any contribution from the 
State.95) Similarly a university in South Dakota which maintained 
and promulgated the doctrines of the Presbyterian Church has 
been disqualified from receiving payments from the State for the 
tuition of students at its normal department, on the ground that 
it was a sectarian school. The court, in rendering this decision, 
pointed out' that any other holding would enable one leading 
denomination to get control of the school institutions and funds 
of the State under the guise of receiving pay for its services.^^) 
In construing the Kentucky provision, the Kentucky Supreme 
Court says : 

The constitution not only forbids the appropriation for any 
purpose or in any manner of the common school-funds to sectarian 
or denominational institutions, but it contemplates that the separa- 
tion between the common school and the sectarian or denominational 
school or institution shall be so open, notorious, and complete that 
there can be no room for reasonable doubt that the common school 
is absolutely free from the influence, control, or domination of the 
sectarian institution or school.^^) 

A provision levied expressly against sectarian schools, however, 
is not absolutely necessary to accomplish the desired result. Kot 
a few of the constitutions have provisions laying it down that 
certain funds shall be "inviolably appropriated to," 98) or kept 
inviolate ^9) for, the purpose of sustaining a system of common 
schools, or shall "be faithfully used and applied each year for the 

94) Oklahoma (1907), Art. 2, Sec. 5. 

95) 1882, State v. Hallock, 16 Nev., 373. 378. 

96) 1891, Synod of South Dakota v. State, 2 S. D., 366. 373; 50 N. W., 
632; 14 L. R. A., 418. 

97) 1917, Williams v. Stanton Common School District. 173 Ky., 708. 
725; 191 S.W.. 507; L. R. A., 1917, D. 453, withdrawing 172 Kv., 133; 
188 S. W., 1058, on rehearing. 

98) Connecticut (1818), Art. 8, Sec. 2; Indiana (1851), Art. 8, Sec. 3; 
Iowa (1857), Art. 9, Title 2, Sec. 3; Kansas (1859), Art. 6, Sec. 3. 

99) Maryland (1867), Art. 8, Sec. 3. 



19 

benefit of the common schools of the State." ^'^) It is clear that 
under such a provision such funds cannot be appropriated to any 
school which is not a public school, no matter how undenominational 
and unsectarian it may be.ioi) Much less can it be appropriated 
to a denominational school. Under a constitutional provision by 
which the revenue of the school-fund is to be applied to the sup- 
port of the common schools, the legislature cannot appropriate to 
a religious orphan asylum a part of such revenue. Religious faith 
is not to be propagated at the public expense.i*^^) Even an orphan 
house conducted by a city is not a "free public school" within 
the meaning of the South Carolina constitution, not being open 
to all. ^"^3) • Such a fund, therefore, must be applied to such schools 
only as come within the imiform system devised, and under the 
general supervision of the State superintendent are free from all 
sectarian religious control, and ever open to all children of the 
proper age within the proper district. To hold that the common 
school-fund can be diverted to the building up of private edu- 
cational enterprises of this character, would be plainly violative 
of tha fundamental purpose of its creation and the constitutional 
safeguards thrown around it.^'^^) 

A number of Western States have had especial reasons, on 
account of the presence of the Mormon Church, to be watchful 
to retain their liberty of conscience. Accordingly, the constitution 
of Wj'oming requires that no sectarian qualification or test shall 
be imposed, exacted, applied, or in any manner tolerated in the 
schools of any grade or character controlled by the State.^'^S) Simi- 
larly the constitutions of Arizona, Colorado, Idaho, Montana, and 
Utah provide that no religious test or qualification shall ever be 
required of any person as a condition of admission into any edu- 
cational institution of the State, either as teacher or student.^o^) 
The Idaho constitution further stipulates that no books, papers, 

100) North Dakota (1889), Sec. 154. 

101) 1872, Halbert v. Sparks, 72 Ky. (9 Bush.), 259; 1892, Under- 
wood V. Wood, 93 Ky., 177; 19 S. W., 405; 15 L. R. A., 825; 1874, Collina 
V. Henderson, 74 Ky. (11 Bush.), 74; 1870, People v. Allen, 42 N. Y., 404; 
1872, Gordon v. Cornes, 47 N. Y., 608. 

102) 1851, People v. Board of Education, 1.3 Barb., 400. 

103) 1884, Ex parte Malone, 21 S. C, 435. 411. 

104) 1879, Otken v. Lamkin, 56 Miss., 758. 764. 765. 

105) Wyoming (1889), Art. 7, Sec. 12. 

106) Arizona (1912), Art. 11, Sec. 7; Colorado (1876), Art. 9, Sec. 8; 
Idaho (1890), Art. 9, Sec. 6; Montana (1889), Art. 11, Sec. 9; Utah 
(1895), Art. 10, Sec. 12. 



20 

tracts, or documents of a sectarian or denominational cliaracter 
shall be used or introduced in any public school,i07) while Wyo- 
ming forbids any requirement to attend any religious services 
"therein." ^o^) This last provision is broadened by the Idaho and 
Colorado constitutions to read: "No teacher or student of any 
such institution shall ever be required to attend, or participate in, 
any religious services whatever" ; 109) and this latter provision is 
substantially copied by Montana.ii*^) i^ Nebraska and South 
Dakota the State has even been prohibited from accepting "any 
grant, conveyance, or bequest of money, lands, or other property 
to be used for sectarian purposes." ^^^) 

There can be no question but that this solution of the diffi- 
culty, no matter what hardships it implies to those who retain 
their parochial schools, is the only solution which will keep Church 
and State apart. Any arrangement by which parochial schools 
are allowed to participate in the public school-funds cannot but 
result in denominational political pressure. Contribution of public 
funds to denominational institutions must inevitably result in 
a close public control over them. This, in turn, has the further 
inevitable consequence of bringing these denominations into the 
smirched arena of practical politics Avith a view of shaping such 
control to suit their own purposes. Where any one denomination 
or a combination of them is strong enough, it will further inevi- 
tably lead to a shifting of such control from the State to these 
denominations. Instead of the denominational schools being con- 
trolled by the public authorities, the spectacle will be presented 
of the public schools being controlled by the denominations. Sucli 
a result bids defiance to all the conceptions of religious liberty 
by which the American people have been guided. The utter 
impolicy of any such arrangement has been vividly illustrated 
by a Michigan case of fairly recent date. In this case the limits 
of a school district and those of a Catholic parish appear to have 
been substantially identical. Land was bought and title taken in 
the name of the bishop. A school-building was built thereon partly 
by church subscription, partly by public taxes. A teacher was 
installed who was satisfactory to the Church, who taught the 

107) Idaho (1890), Art. 9, Sec. 6. 

108) Wyoming (1889), Art. 7, Sec. 12. 

109) Idaho (1890), Art. 9, Sec. 6; Colorado (1876), Art. 9, Sec. 8. 

110) Montana (1889), Art. 11, Sec. 9. 

111) Nebraska (1875), Art. 8, Sec. 11; South Dakota (1889), Art. 8,. 
Sec. 16. 



21 

Catholic religion in the school, and whose salary was made up partly 
from church-contributions, partly from tuition-money, and partly 
from public school-funds. Finally, the school officers became dis- 
satisfied with the teacher and sought to remove him. When the 
bishop resisted this move, they took possession of the building and 
held it by stationing one of their members there, who remained 
on his post day and night. This led the priest in charge of the 
parish on the following Sunday to organize his congregation into 
a procession, which made its way to the schoolhouse with a view of 
ousting the school trustee. His resistance to this process brought 
the matter into the court. The Supreme Court refused to hold 
that the bishop and the priest "were guilty of receiving public 
funds in an illegal and unconstitutional manner," though that 
was the gist of their own contention, and unscrambled the weird 
situation presented to it by holding that the building was a public 
school, and that the bishop was merely a trustee for the school 
district.112) j^ Yiew of the facts of this case, the truth of the 
following extract from an opinion of the Tennessee court is per- 
fectly apparent : — 

It is contrary to law and to public policy to allow the public 
school-money to be invested in property in which any religious de- 
nomination or society or any other person has any interest or rights. 
Constant contention and friction is sure to arise while the building 
is being so used ; and when it is desired to sell it, the respective rights 
of the parties would inevitably draw them into litigation.ii3) 

The situation in connection with the National Government 
is of great interest. There is plainly nothing in the Federal 
Constitution which forbids a contract by the Government with 
an institution controlled by a Church. Such a contract made by 
authorized Federal agents with a hospital controlled by a Church 
for the rendition of actual services in nursing the sick or preventing 
contagion, has therefore been upheld by the United States Supreme 
Court in a case arising in the District of Columbia as not being 
in conflict with the First Amendment of the United States Con- 
stitution.^i^) Nor has Congress absolutely abstained from making 
even out-and-out contributions to sectarian institutions of various 
kinds at various periods of our national existence.^i^) In the case 
of Ohio not only has Section 16 of each township been reserved by 

112) 1894, Richter v. Cordes. 100 Mich., 278. 284; 58 N. W., 1110. 

113) 1896, Swadley v. Hajiies, 41 S. W., 1066. 1068 (Tenn.). 

114) 1898, Robert v. Bradfield, 12 App. D. C, 453. 472; affirmed, 175 
U. S., 291; 44 L. Ed., 168; 20 S. C, 121. 

115) See instances cited in 1898, Robert v. Bradfield, supra. 



23 

Congress for the use of the schools, but Section 29 of each town- 
ship has similarly been reserved for the use of religion within each 
township.116) In view of this situation the following declaration 
of Congress made in 1897, in an act making appropriations for 
the District of Columbia, while it does not and cannot control any 
subsequent legislation, is of special interest : — 

It is hereby declared to be the policy of the Government of the 
United States to make no appropriation of money or property for 
the purpose of founding, maintaining, or aiding, by payment for 
services, expenses or otherwise, any church or religious denomination, 
or any institution or society which is under sectarian or ecclesiastical 
control; and it is hereby enacted that, from and after the thirtieth 
day of June, 1898, no money appropriated for charitable purposes in 
the District of Columbia shall be paid to any church or religious 
denomination, or to any institution or society which is under sectarian 
or denominational control.^l'^) 

The policy of this statutory declaration has been illustrated 
particularly by the action of Congress toward the Indians. Before 

1894 the Government regularly appropriated public funds for the 
sectarian education of the Indians. Opposition to this practise 
developing in 1894, i^ was declared in the appropriation act of 

1895 to be "the settled policy of the Government to hereafter make 
no appropriation whatever for education in any sectarian school." 
Such appropriations were thereupon gradually decreased, till they 
ceased altogether in 1899, "the final appropriation for sectarian 
schools" having been made in that year. Such declarations, how- 
ever, did not make a contract for sectarian instruction void where 
trust- or treaty-funds are involved. These are the property of the 
Indians, and may be spent for them by the Government for their 
sectarian education. i^^) 

Before taking up the parochial school situation in particular, 
it will be well to dispose of a number of specific religious or semi- 
religious questions that have arisen in connection with the public 
school system. Where State and Church are united as they are 
in most European countries, and as they were at one time in most 
of the thirteen colonies, there is no occasion for a separation of 
secular and religious education. Both are under the same authority, 
and can most conveniently be given in the same building. Where, 

116) 1841, State v. Trustees of Section 29, 11 Ohio, 24. 26. See See. 1, 
Art. 6, of the Ohio constitution of 1851 and 1912, which speaks of property 
entrusted to the State "for educational and religious purposes." 

117) 29 Statutes at Large, 683. 

118) 1908, Quick Bear v. Leupp, 210 U. S., 50; 28 S. C, 690. 



23 

however, there is a separation of Church and State, as is the case 
now in the United States, a great difficulty presents itself. The 
boundary betw^een religious and secular education is not clearly 
defined, and is, in fact, a broad zone rather than a line. The 
State needs the softening influence of religion to round out the 
education of its future citizens, while the churches cannot but 
recognize the great advantage of secular knowledge to their members. 
While attempts on the part of the churches to impart secular 
knowledge in conjunction with their religious instruction are 
unobjectionable, since the State does not claim any monopoly in 
the educational field, attempts by the State to teach religion in 
addition to reading, writing, arithmetic, and other secular subjects, 
all constitutional questions entirely aside, at once lead to very 
serious practical difficulties. While there is no disagreement in 
regard to the elements of secular knowledge, there is a very decided 
difference of opinion concerning the relation of God to man. 
While arrangements satisfactory to all can occasionally be made 
for the teaching of religion in the public schools where all the 
inhabitants of a district are of the same faith, such a situation, 
far from being the rule, is rather a rare exception. Ordinarily 
any arrangement by which any form of religious instruction is 
given in a public school must in its very nature come into conflict 
with the religious convictions of a part of its patrons. That 
interesting questions of religious liberty have grown out of this 
situation cannot be cause for any surprise. 

In dealing with this question, the historical background must 
not be disregarded. Our public schools have developed very largely 
from the scattered schools wdiich at one time existed in connection 
with the various established churches, and from schools founded 
by religious devotees as charitable institutions. In view of this 
history it is not surprising that prayers should have been recited 
in the public schools, that religious hymns should have been sung, 
and that the Bible should have been read. This custom has not 
only prevailed quite generally in the public schools particularly 
of the older States, but prevails to some extent to-day and has 
gone unchallenged in most instances. So well is the practise recog- 
nized that the constitution of Mississippi provides that its reli- 
gious freedom provision shall not be construed "to exclude the 
Holy Bible from use in any public school of this State." ^^^) As a 
part of the stringent resolution for an amendment of the United 



119) Mississippi (1890), Art. 3, See. 18. 



24 

States Constitution, which was the result of the school agitation 
of 1875, and which was defeated by the Senate on August 14, 1876, 
it was expressly declared that such provision "shall not be con- 
strued to prohibit the reading of the Bible in any school or insti- 
tution." 120) The value of Bible-instruction has also been recog- 
nized by a Federal statute enacted in 1888, which provides that at 
day- or industrial schools, sustained wholly or in part by appropria- 
tions from the Government, at which schools church organizations 
are assisting in the educ^ional work, "the Christian Bible may be 
taught in the native language of the Indians, if in the judgment 
of the persons in charge of the schools it may be deemed conducive 
to the moral welfare and instruction of the pupils in such 

schools." 121) 

When, however, the decisions concerning the question of Bible- 
reading in the public schools are examined, a conflict is at once 
discovered. Such reading has been proscribed in Louisiana on the 
complaint of Jews and Catholics as being a preference toward 
some and a discrimination against other religions. 122) It has been 
held in Wisconsin, Nebraska, and Illinois that such reading is 
"sectarian instruction" and "public worship," and as such is for- 
bidden by the constitutions of those S-tates.i23) In the Nebraska 
case, however, the court, on rehearing, eliminates the contention 
that Bible-reading is an act of public worship. In the Wisconsin 
case one of the judges even went so far as to hold that by such 
reading the common schools were converted into "theological 
seminaries." 12*) The Illinois court, though its previous decisions 
seemed to point to a recognition of Bible-reading in the public 
schools,i25) has excluded the Bible entirely, while the Nebraska 
and Wisconsin courts bar it only so far as it is sectarian, and not 
so far as it teaches "the fundamental principle of moral ethics." 
They have, however, not laid down any definite tests as to just 

120) Congressional Record, Vol. 4, Part 6, p. 5453. 

121 ) 25 U. S. Statutes at Large, 239. 

122) 1915, Herold v.. Parish Board of School Directors, 136 La., 1034; 
68 So., 116; L. R: A., 1915, D., 941. 

123) 1890, State ea? rel. Weiss v. Edgerton School District, 76 Wis., 
177; 44 N.W., 967; 7 L. R. A., 330; 20 Am. St. Rep., 41; 1910, People 
V. Board of Education, 245 111., 334; 92 N. E., 251; 1902, State ex rel. 
Freeman v. Scheve, 65 Nebr., 853; 93 N. W., 169; 59 L. R. A., 927. 

124) 1890, State ex rel. Weiss v. Edgerton School District, supra. 

125) 1879, Nichols v. School Directors, 93 111., 61; 34 Am. Rep., 160; 
1880, McCormick v. Burt, 95 111., 263; 35 Am. Rep., 163; 1891, North 
V. University of Illinois, 137 111., 296; 27 N. E., 54. 



25 

where moral instruction ends and sectarian instruction begins, thus 
leaving school boards who should attempt to authorize Bible-reading 
in the schools in a difficult and embarrassing position. In all the 
other States in which the question has been raised the practise 
has been upheld. In some of these States the constitutional pro- 
visions are different, and this may explain the difference in the 
result. 12*J) In others, however, they are substantially the same as 
in Wisconsin, Nebraska, and Illinois; but the courts take a dif- 
ferent view of their meaning.i27) ^he kty to these latter decisions 
is given in a Texas case, where the court says that "Christianity 
is so interwoven with the web and woof of the State government 
that to sustain the contention that the constitution prohibits 
reading the Bible, offering prayers, and singing songs of a 
religious character in any public building of the Government would 
produce a condition bordering upon moral anarchy," and "starve 
the moral and spiritual natures of the many out of deference to 
the few." ^^} The position of the Illinois court, and to a less 
extent that of the Wisconsin and Nebraska courts, is probably well 
expressed in the following extract from an Ohio case : — 

To teach the doctrines of infidelity, and thereby teach that Chris- 
tianity is false is one thing ; and to give no instructions on the subject 
is quite another thing. The only fair and impartial method, where 
serious objection is made, is to let each sect give its own instructions 
elsewhere than in the State schools, where of necessity all are 
to meet.129) 

It has also been a general practise, particularly in new and 
sparsely settled countr}^ districts, to hold religious services and 
Sunday-schools in the public-school houses at such hours as not 
to conflict with the conduct of the schools. ^^O) "jij^g question has 



126) 1854, Donahue v. Richards, 38 Me., 379; 61 Am. Dec, 256; 1866, 
Spiller V. Woburn, 94 Mass., 127 ; 1894, Nestle n. Hun, 1 N. P., 140 ; 2 Ohio, 
Dee. 60. 

127) 1898, Pfeiffer v. Detroit Board of Education, 118 Mich., 560; 
77 N. W., 250; 42 L. R. A., 536; 1884, Moore v. Monroe, 64 Iowa, 367; 
20 N. W., 475; 52 Am. Rep., 444; 1907, Church v. Bullock, 100 S. W., 1025; 
109 S.W., 115; 16 L. R. A. (N. S.), 860 (Tex.) ; 1904, Billard u. Topeka Board 
of Education, 69 Kans., 53; 76 Pac, 422; 66 L. R. A., 166; 105 Am. St. 
Rep., 148; 1905, Hackett v. Brookville Graded School District, 120 Ky., 
608; 87 S. W., 792; 69 L. R. A., 592; 117 Am. St. Rep., 599. See notes 
in 16 L. R. A. (N. S.), 860, and 2 Ann. Cas., 522. 

128) 1907, Church v. Bullock, supra, at end of opinion. 

129) 1872, Board of Education v. Minor, 23 Ohio St., 211. 253. 

130) 1856, Sheldon v. Center School District, 25 Conn., 224. 



26 

arisen whether this is proper. Some courts, in passing on this 
question, have held that the school authorities have no power to 
appropriate the school-building to any use not strictly educational, 
and have therefore enjoined its use for religious services.i^i) Other 
courts have held the determination of the electors or school officials 
conclusive, whether the same was favorable or unfavorable to such 
use.132) jji jjone of these cases was the question discussed whether 
or not such use was in harmony with the constitution of the State, 
The Indiana Appellate ^ourt merely has raised the question 
whether a constitutional provision that "no man shall be compelled 
to attend, erect, or support any place of worship" is violated by 
such use.^33) The Kansas court has indicated strongly that such 
use amounts to taxation for private purposes, and should be 
enjoined.134) The Illinois Supreme Court has upheld such use 
against the objection that it compelled the taxpayers of the district 
to support a place of worship against their consent, saying : "Eeli- 
gion and religious worship are not so placed under the ban of the 
constitution that they may not be allowed to become the recipient 
of any incidental benefit whatsoever from the public bodies or 
authorities of the State." i^^) The Nebraska Court has held 
that religious meetings held in a school-house on Sunday four times 
a year do not constitute it a place of worship. ^^S) The Iowa Court, 
after declaring that the propriety of such use "ought not to be 
questioned in a Christian State," ^f^) met the same argument with 
which the Illinois Court had been confronted, as follows : — 

The use of a public school-building for Sabbath-schools, religious 
meetings . . ., which of necessity must be occasional and temporary, 
is not so palpably a violation of the fundamental law as to justify 
the courts in interfering. Especially is this so where, as in the case 



131) 1858, Scofield v. Eighth School District, 27 Conn., 499; 1905, 
Baggerly v. Lee, 37 Ind. App., 139; 73 N. E., 921; 1878, Dorton v. Hearn, 
67 Mo., 301; 1897^ Bender v. Streabish, 182 Pa., 251; 37 Atl., 853; 1900, 
Spring V. Harmar Townsiiip, 31 Pitts Legal J., 194. 

132) 1901, Boyd v. Mitchell, 69 Ark., 202; 62 S. W., 61; 1909, School 
Directors v. Toll, 149 111. App., 541; 1874, Hurd v. Walters, 48 Ind., 148; 
1898, Eckhardt v. Darby, 118 Mich., 199; 76 N. W., 761. 

133) 1905, Baggerly v. Lee, 37 Ind. App., 139; 73 N. E., 921. 

134) 1875, Spencer v. Joint School District, 15 Kans., 259; 22 Am. 
Rep., 268. 

135) 1879, Nicholls v. School Directors, 93 111., 61. 64; 34 Am. Rep., 
160. 

136) 1914, State v. Dilley, 95 Nebr., 527; 145 N. W., 999. 

137) 1872, Townsend v. Hagen, 35 Iowa, 194. 198. 



27 

at bar, abundant provision is made for securing any damages whicli 
tbe taxpayers may suffer by reason of the use of the house for the 
purposes named. With such precaution the amount of taxes any 
one would be compelled to pay by reason of such use would never 
amount to any appreciable sum. . . . Such occasional use does not 
convert the schoolhouse into a building of worship within the 
meaning of the constitution.^^S) 

Whether an arrangement by which part of the facilities of 
a church or denominational school are leased to the public school 
authorities is valid will depend upon circumstances. That such 
an arrangement, no matter how honestly made, is dangerous to 
religious liberty where it is long continued and is with a sectarian 
school, which does not cease to operate, cannot admit of any doubt, 
and has therefore received the condemnation of the Kentucky 
court.^39) An entirely different situation is presented where no 
sectarian school is involved, or where the arrangement is but 
temporary, in order to fill a need which cannot otherwise be sup- 
plied. No reason is perceived why school authorities cannot lease 
a vacant building which has been built for parochial school pur- 
poses. No valid grounds appear to exist why they may not simi- 
larly lease a church-building for school purposes. No discrimina- 
tion should be made between such property and property used for 
commercial purposes. The leasing of a church basement for 
public school purposes ^*^) or of its auditorium for the graduation 
exercises of a public school,^'*!) and even an advancement of money 
by a school district to a church in order to enable it to complete 
its building in time for the use of the school,i42) have therefore 
been upheld by various courts. The Wisconsin Court has even held 
that rooms in a parochial school-building may be leased for public 
school purposes.^'*^) Says the Illinois Appellate Court: "Eeligious 
organizations are not under such legal bans that they may not deal at 



138) Davis v. Boget, 50 Iowa, 11. 15. 16. See Notes, 32 Ann. Cas., 
303; 31 L. R. A. (N. S.), 593; L. R. A. 1917 D., 462. 

139) 1917, Williams v. Stanton Common School District, 173 Ky., 708; 
191 S. W., 507; L. R. A. 1917 D., 453; withdrawing on rehearing, 172 Ky., 
133; 188 S. W., 1058. See Note L. R. A. 1917 D., 462. 

140) 1886, Millard v. Board of Education, 19 111. App., 48; affirmed 
121 111., 297; 10 N. E., 669. 

141) 1916, State v. District Board of Joint School District No. 6, 162 
Wis., 482; 156N. W., 477; L. R. A. 1916 D., 399. 

142) 1897, Swadley v. Haynes, 41 S. W., 1066. 1069 (Tenn.). 

143) 1008, Dorner v. School District No. 5, 137 Wis., 147; 118 N. W., 
353; 19 L. R. A. (N. S.), 171. 



28 

arm's length with the public in selling or leasing their property, when 
required for public use, in good faith." i^) 

It is no objection to public schoolteachers that they are 
adherents of any particular denomination. Nor is it an objection 
to them that they make open profession of their faith at all proper 
occasions. Whether, however, such profession may take the form of 
the wearing in the public school-buildings of distinctly religious 
garbs by teachers, and the display by them of rosaries and crucifixes, 
is a far closer question. The Pennsylvania Supreme Court in 1894 
upheld such a practise, over the dissent of one of its members, 
remarking that, "in a popular government by the majority, public 
institutions will be tinged more or less by the religious proclivities 
of the majority." i'*^) This decision proved to be so unpopular 
that recourse was had to the legislature, which in 1895 passed an 
act to prevent such practise. The constitutionality of this law 
has been upheld by the court on the ground that it is directed 
against acts, and does not interfere with religious sentiment.^^^) 
In 1906 the same question came before the highest court of New 
York, which held that a regulation by the State Superintendent 
forbidding such practise is reasonable and proper on the ground 
that the wearing of such costumes necessarily inspires respect, 
if not sympathy, for the religious denomination to which the 
teacher belongs. ^'^^) 

Occasionally school- and church-regulations concerning the 
conduct of children at certain occasions have come into direct 
conflict, thus presenting to the children the choice of obeying the 
will of the State, as crystallized in the school-regulations, or the 
will of their parents, as expressed by the church-regulations. In 
the sole case in which this matter has been litigated, the public 
school authorities have been upheld in their action of excluding 
Catholic children from the public schools because they had absented 
themselves in accordance with their church-requirements from such 

144) 1886, Millard v. Board of Education, 19 111. App., 48. 54; affirmed 
121 III., 297; 10 N. E., 669. See 1864, Perry v. McEwen, 22 Ind., 440, and 
Note L. R. A. 1917 D., 462. 

145) 1894, Hysong v. School District, 164 Pa., 629. 656; 26 L. R. A., 
203; 30 Atl., 482; 44 Am. St. Rep., 632. 

146) 1909, Commonwealth v. Herr, 39 Pa. Super. Ct., 454; affirmed, 
designating the opinion as "characteristically well considered," 229 Pa., 
132; 78 Atl., 68; Ann. Gas. 1912 A., 422. See Note 42, L. R. A. (N. S.), 33. 

147) 1906, O'Connor v. Hendrick, 184 N. Y., 421; 77 N. E., 612; 7 L. 
R. A. (N. S.), 402. 



29 

schools on Corpus Christi Day.^^) There can be no question of 
the correctness of this decision. Any other holding woidd enable 
churches to gain a considerable control over the action of the 
public schools. If the religious convictions of parents are such 
that they cannot accommodate themselves to the school-regulations, 
they are at liberty to found and maintain parochial schools, and 
conduct them in accordance with their church-regulations. 

While the public schools have been protected from denomina- 
tional control, the guarantees of religious liberty contained in the 
various constitutions require that denominational schools should 
not be molested. Nor need the search for constitutional protection 
of parochial schools be confined to the general provisions relating 
to freedom of conscience. Parochial schools, on the contrary, have 
received direct recognition in various constitutions, and would 
unquestionably have received more such recognition had they ever 
been subjected to a concentrated attack. The famous declaration 
of the Northwest Territorial Ordinance passed by the Congress of 
the Confederation in 1787 before the adoption of the Federal Con- 
stitution, and before the rise of the public school system, to the 
effect that "religion, morality, and knowledge being necessary to 
good government and the happiness of mankind, schools and the 
means of education shall forever be encouraged," i^^) has been 
literally copied into the Michigan and North Carolina constitu- 
tions,^^ and has been elaborated on by the Nebraska and Ohio 
constitutions as follows : "Eeligion, morality, and knowledge, how- 
ever, being essential to good government, it shall be the duty of 
the legislature to pass suitable laws to protect every religious 
denomination in the peaceable enjoyment of its own mode of public 
worship, and to encourage schools and the means of instruction." ^^^ 
A similar provision is also to be found in the Arkansas constitu- 
tion.i^ Accordingly, the fundamental law of Delaware exempts 
from taxation or assessment for public purposes "all real or per- 
sonal property used for school purposes, where the tuition is 



148) 1876, Ferritur v. Tyler, 48 Vt., 444. See 12 Can. L. J. (N. S.) , 300. 

149) Art. 3, Northwest Territorial Ordinance of 1787. 

150) Michigan (1908), Art. 11, Sec. 1; North Carolina (1876), Art. 9, 
See. 1. 

151) Nebraska (1875), Art. 1, Sec. 4; Ohio (1851 and 1912), Art. 1, 
Sec. 7. 

152) Arkansas (1874), Art. 2, Sec. 25. This provision, however, is 
not as complete as that of Nebraska and Ohio. 



30 

free." i^S) The North Carolina constitution in the provision fol- 
lowing immediately upon its religious freedom clause says: "The 
people have the right to the privilege of education, and it is the 
duty of the State to guard and maintain that right." i^) Similarly 
the Vermont constitution declares : "All religious societies or bodies 
of men that may be united or incorporated for the advancement of 
religion and learning, or for other pious and charitable purposes, 
shall be encouraged and protected in the enjoyment of the privileges, 
immunities, and estates, which they in justice ought to enjoy, under 
such regulations as the General Assembly of this State shall 
direct/' ^^^) The Oklahoma constitution recognizes parochial schools 
by providing that "the legislature shall provide for the compulsory 
attendance at some public or other school, unless other means of 
education are provided, of all the children in the State." ^^) The 
Kentucky constitution is so careful to guard the rights of con- 
science that it lays it down that no man shall "be compelled to send 
his child to any school to which he may be conscientiously 
opposed." ^57) The provisions of the Georgia and Maine constitu- 
tions have already been referred to.i^S) In view of these provisions 
it cannot admit of any doubt that it is not the "public policy of 
the State that the children of the State shall not receive any edu- 
cation in any other school than in one of the public schools estab- 
lished by itself." 159) 

Nor has this recognition been confined to the constitutions. 
It has, on the contrary, been bountifully accorded by statutory 
enactments passed by the various legislatures. These, however, 
cannot be noticed in detail without expanding this pamphlet into 
a book. Nor will it be desirable to notice them any farther than 
they have come before the courts for construction. They are so 
much subject to every wind of popular favor that nothing per- 
manent can be built up upon them. As well might it be attempted 
to rear a building on sand dunes. But while statutes come and go, 
judicial opinions, even though nothing more than constructions of 



158. 



153) Delaware (1897), Art. 10, Sec. 3. 

154) North Carolina (1876), Art. 1, See. 27. 

155) Vermont (1793 and 1913), Art. 64. 

156) Oklahoma (1907), Art. 1.3, Sec. 4. 

157) Kentucky (1890), Sec. 5. 

158) See notes 49 and 50 of this pamphlet. 

159) 1877, Gilraour v. Pelton, 5 Ohio Dec, 447; 2 Weekly Law Bui., 



3r 

statutes, remain as permanent landmarks, and as such deserve 
consideration at this phice. 

Perhaps the largest class of statutes which recognizes parochial 
schools and has come before the courts relates to the exemption of 
parochial school property from taxation. While exemptions granted 
to "public schools" will not be construed to exempt parochial 
schools, though no charge is made by them for tuitioUji^O) parochial 
schools will be included in the exemption where the more general 
word schoolhouse is used,^^!) or where property used for educa- 
tional purposes ^^^) or for a seminary of learning ^^3) is exempted. 
Where the right to exemption is further qualified, parochial schools, 
f course, must bring themselves within the law in order to enjoy 
the benefit. They have under such statutes been denied exemption 
because they were not owned by some congregation,^*'^) or because 
the association which owned them was not incorporated.^^^) They 
have, furthermore, been exempted as charitable institutions or 
institutions of purely public charity.^*^*^) It has been said that the 
establishment and maintenance of a school 

out of revenues of the church, and the voluntary contributions of 
those of its patrons who are able and willing to give, no pecuniary 
profit being derived therefrom nor expected, the same being open 
upon equal terms to all children of Catholic parents belonging to 
the parish, and to all others living therein, of whatever religious 
belief, who may desire to avail themselves of the same, it being left 
optional with the latter to receive religious instruction or not, as 
their parents may choose, is, in the legal sense, not only a charity, 
but one wholly and entirely of a public nature, and therefore a purely 
public one.16'') 



IGO) 1891, People ex rel. Pavey v. Ryan, 138 111.. 263; 27 N. E., 1095; 
1874, Gerke v. Purcell, 25 Ohio St., 229; 1878, St. Joseph's Church v. Prov- 
idence, 12 R. I., 19. 

161) 1855, Catholic Society v. New Orleans, 10 La. Ann., 73; 1878, 
First Presbyterian Church v. New Orleans, 30 La. Ann., 259; 31 Am. Rep., 
224. 

162) 1894, United Brethren v. Forsyth County, 115 N. C, 489; 20 S. E., 
626. 

163) 1881, Hennepin County v. Grace, 27 Minn., 503; 8 N. W., 761. 

164) 1891, People ex rel. Pavey v. Ryan, supra. 

165) 1890, Church of St. Monica v. New York, 119 N. Y., 91; 23 N. E., 
294; 7 L. R. A., 70; reversing 55 Super. Ct. (23 Jones and S.), 160; 13 N.Y, 
State Rep., 308. 

166) 1878, Appeal Tax Court v. St. Peter's Academy, 50 Md., 321; 
188.3, Gilmour v. Pelton, 5 Ohio Dec, 447; 2 Weekly Law Bui., 158; 1892, 
Episcopal Academy v. Philadelphia, 150 Pa., 565; 25 Atl., 55. See 1881, 
Miller's Appeal, 10 Weekly Notes Cas., 168 (Pa.). 

167) 1881, Hennepin County V. Grace, 27 Minn., 503. 506; 8 N. W., 761, 



32 ■ 

The recognition of parochial schools as charities is not con- 
fined to exemption statutes. If a church is not to pass out of 
existence, it must educate its younger generation, so that, when 
the older generation has passed away, there will be men and women 
to take its place. This purpose has been accomplished in this 
country, in part, through parochial schools, which therefore are 
recognized as charities germane to the purposes of a church cor- 
poration.1^8) Such a school has been held to be clearly within the 
statute of Elizabeth i^^) and to be an unquestionable charity. i'^**) 
It follows that it is an institution to which charitable gifts may 
well be made.^^^) 

It is indeed impossible to perceive why denominational schools, 
properly conducted, should not be recognized by the State, The 
religion which they teach is useful to the State, and the secular 
knowledge which they impart is certainly no objection to them. 
Since church-bodies may lawfully establish denominational schools 
in heathen lands,^'^^) since they may establish Sunday-schools ^'^^) 
and cemeteries exclusively denominational,^'^^) it would follow that 
they may establish parochial schools in this land of religious liberty. 
Accordingly, a parochial school has been held to be a private school 
within the meaning of a statute which makes it the duty of 9,11 
principals and teachers of schools, public and private, to report to 
the clerk of the Board of Education. i'^^) ^ denominational school 



168) 1894, Hanson v. Little Sisters of the Poor, 79 Md., 434. 438; 32 
Atl., 1052; 32 L. R. A., 293. 

169) 1884, Andrews v. Andrews, 110 TIL, 223. 231. 

170) 1879, DeCamp v. Dobbins, 31 N. J. Eq. (4 Stew.), 671, affirming 
29 N. J. Eq., 36. 53. 

171) 1912, Ackerman v. Fichter, 179 Ind., 392; 101 N. K, 493; 46 L. 
R. A. (N. S.), 221; 1845, Neweomb v. St. Peter's Church, 2 Sandf. Ch., 636 
(N.Y.); 1899, Keith v. Scales, 124 N. C, 497. 517; 32 S. E., 809; 1906, 
Banner v. Rolf, 43 Tex. Civ. App., 88. 93; 94 S. W., 1125. 

172) 1914, Eaton v. Home Missionary Society, 264 111., 88; 105 N. E., 
746; 1910, Boardman v. Hitchcock, 120 N. Y. Supp., 1039. 

173) For cases involving Sunday-schools see 1916 Union Sunday-school 
Association v. Christian Church, 171 Ky., 534. 539; 188 S. W., 626; 1909, 
M. E. Church v. Ashbury Sunday-school, 109 Md., 670; 72 Atl., 199; 1899, 
South Kenton Union Sunday-school Ass'n v. Epsy, 17 Ohio Cir. Ct. Rep., 524; 
9 Ohio Cir. Dec, 695; 1901, St. Matthew's Church v. Schaffer, 25 Pa. C. C, 
113; 17 Montg. Co., 122. 

174) 1880, People ex rel. Coppers v. Trustees, 21 Hun., 184. 198. 

175) 1891, Quigley v. State, 3 Ohio Cir. Dec, 310; 5 Ohio Cir. Ct. Rep., 
638. 657. 



33 

has been recognized as a private institution, though its funds were 
raised in part from people outside of the denomination, though it 
was subsidized by the local government, and though its trustees 
were non-members.^"'') A lease by a village to individuals of its 
waterworks, which provides that water is to be furnished free to 
all schoolhouses, has been held to cover the building of a parochial 
school.^^''') Similarly a deed for a parochial school,^'^^) or a contract 
to build it,i"9) has received judicial recognition. Such schools have 
with other schools been protected in a measure from the evil 
influences of a bowling alley i^) or a saloon,!^^) by requiring such 
Ucensed businesses to remain beyond a certain distance from such 
school. Their buildings have been held to be occupied exclusively 
as a schoolhouse within the meaning of such statute, though their 
upper rooms were occupied by the sisters of charity who taught 
therein,^^) or even by teachers of the same religious order who 
did not teach in such building.^^) It has been said that "in view of 
its obvious policy in protecting the school against the evil influences 
of the saloon, the statute should be so expounded as to accomplish 
its benign intent, and to that end be accorded a literal or a liberal 
interpretation, as may most effectually avert the apprehended 
mischief." ^^) It has been stated that an argument which excludes 
a private school from the protection of such a statute would exclude 
colleges, academies, and institutions of instruction of every sort.^^) 
It goes without saying, however, that such schools, to a certain 
extent at least, are subject to the supervision and control of the 
State. The Arizona constitution, in the very paragraph in which 
sectarian instruction and religious tests in the public schools are 
prohibited, provides that "the liberty of conscience hereby secured 



176) 1885, Busby v. Mitchell, 23 S. C, 472. 

177) 1910, St. Patrick's Church Society v. Heermans, 124 N. Y. Supp., 
705; 68 Misc. Rep., 487. 

178) 1901, St. Paul's Ev. Luth. Church v. Gray, 198 Pa., 321; 47 Atl., 
976. 

179) 1897, Roman Catholic Congregation v. O'Leary, 24 Colo., 228; 
49 Pac, 422. 

180) 1902, Harrison v. People, 101 111. App., 224. 

181) 1910, Greenough v. Warwick, 31 R. I., 559; 78 Atl., 262. 

182) 1896, People ex rel. Cairns v. Murray, 148 N. Y., 171; 42 N. E., 
584. 

183) 1896, People ex rel. Claussen v. Murray, 38 N. Y. Supp., 609; 16 
Misc., 398; affirmed, 39 N. Y. Supp., 1130; 5 App. Div., 441. 

184) Ibid. 

185) 1853, State v. Leighton, 35 Me., 195. 



34 

shall not be so construed as to justify practises or conduct incon- 
sistent with the good order, peace, morality, or safety of the State, 
or with the rights of others." i^G) Constitutional provisions similar 
to this are quite frequent. The Massachusetts constitution declares 
that "all religious sects and denominations demeaning themselves 
peaceably and as good citizens of the Commonwealth, shall be 
equ_ally under the protection of the law." ^^t) Tj^g Maryland 
constitution extends protection to every one of whatever faith, 
"unless under the color of religion he shall disturb the good order, 
peace, or safety of the State, or shall infringe the laws of morality, 
or injure others in their natural, civil, or religious rights." ^^S) The 
Maine and N"ew Hampshire constitutions extend a similar pro- 
tection to all, provided that they do not "disturb the public peace 
nor obstruct (or disturb) others in their religious worship. i^^) jj^ j-^g 
most usual form, however, this provision lays it down that the 
liberty of conscience shall not be so construed as to excuse acts 
of licentiousness, or justify practises inconsistent with the peace 
and safety (and good order) of the State. i^*^) In the South Dakota 
constitution the invasion of the rights of others ^^^ and in the 
Montana constitution opposition to State or United States 
authority ^^^) are specifically mentioned, while the Idaho, Mon- 
tana, and Oklahoma provisions are particularly leveled against 
polygamy.1^3) To the honor of the parochial school system it 
must be said that no question involving it with any of these pro- 
visions appears to have been brought into the courts. Kor does 
any other question concerning their regulation aj^pear ever to 



186) Arizona (1912), Art. 11, Sec. 7. 

187) Massachusetts constitution, 11th amendment. 

188) Maryland (1867), Declaration of Rights, Art. 36. 

189) Maine (1819), Art. 1, Sec. 3; New Hampshire, Part 1, Art. 5. 

190) Arizona (1912), Art. 2, Sec. 12; California (1879), Art. 1, Sec. 4; 
Georgia (1877), Art. 1, Sec. 1, Par. 13 ; Illinois, Art. 2, Sec. 3; Minnesota (1857), 
Art. 1, Sec. 16 ; Nevada ( 1864 ) , Art. 1, Sec. 4 ; South Dakota ( 1889 ) , Art. 6, 
Sec. 3; Washington (1889), Art. 1, Sec. 11; Wyoming (1889), Art. 1, Sec. 18. 
The words "and good order" are added by Colorado (1876), Art. 2, Sec. 4; 
Missouri (1875), Art. 2, Sec. 5; and Montana (1889), Art. 3, Sec. 4. Tlie 
following provisions are to the same effect, though they differ in form: 
Florida (1887), Declaration of Rights, Sec. 5; Mississippi (1890), Sec. 18; 
Idaho (1889), Art. 1, Sec. 4. 

191) South Dakota (1889), Art. 6, Sec. 3. 

192) Montana (1889), Art. 3, Sec. 4. 

193) Idaho (1889), Art. 1, See. 4; Montana (1889), Art. 3, Sec. 4; 
Oklahoma (1907), Art. 1, Seo. 2. 



35 

have been adjudicated. While a few eases of State regulation of 
private schools have been passed upon by the courts,^^^) while an 
attempt to stamp out the foreign languages in the parochial schools 
of one State has been defeated by political action, which has 
resulted in the repeal of the statute by which this result M'as sought 
to be achieved,!^^) no question directly involving any parochial 
school has found its way into the books. There would seem to 
be no question, however, that if any parochial school should ever 
make itself into a handmaid of hostile propaganda, it would be 
guilty of "practises inconsistent with the peace and safety of the 
State," and could and should, if it did not desist, be suppressed 
by the heavy arm of the civil power. 



194) See Note 29, L. R. A. (N. S.), 53. 

195) This statute was Chapter 519, Laws of Wisconsin of 1889. It put 
a penalty on parents who did not send their children to school, and de- 
clared: "No school shall be regarded as a school, under this act, unless 
there shall be taught therein, as part of the elementary education of chil- 
dren, reading, writing, arithmetic, and United States history, in the Eng- 
lish language." It was repealed by Chapter 4, Laws of Wisconsin, of 1891. 



Index to Constitutional Provisions. 



(The references are to the footnotes.) 



Alabama, 74. 

Arizona, 31, 40, 79, 87, 106, 186, 190. 

Arkansas, 152. 

California, 40, 55, 78, 90, 190. 

Colorado, 37, 54, 85, 106, 109, 190. 

Connecticut, 98. 

Delaware, 75, 153. 

Florida, 68, 71, 190. 

Georgia, 49, 158, 190. 

Idaho, 31, 39, 57, 106, 107, 109, 190, 

193. 
Illinois, 52, 190. 
Indiana, 46, 98. 
Iowa, 98. 
Kansas, 32, 98. 
Kentucky, 90, 157. 
Louisiana, 74. 
Maine, 50, 158, 189. 
Maryland, 99, 188. 
Massachusetts, 43, 187. 
Michigan, 48, 150. 
Minnesota, 47, 79, 91, 190. 
Mississippi, 32, 81, 89, 119, 190. 
Missouri, 53, 77, 88, 190. 



Montana, 31, 38, 56, 106, 110, 190, 

192, 193. 
Nebraska, 32, 41, 111, 151. 
Nevada, 36, 82, 83, 190. 
New Hampshire, 73, 189. 
New Mexico, 31, 76. 
New York, 92. 
North Carolina, 150, 154. 
North Dakota, 31, 74, 100. 
Ohio, 11, 32, 116, 151. 
Oklahoma, 31, 79, 84, 94, 156, 193. 
Oregon, 46. 
Pennsylvania, 67, 69. 
South Carolina, 93. 
South Dakota, 31, 40, 65, 72, 111, 

190, 191. 
Texas, 66, 70. 
Utah, 31, 58, 79, 87, 106. 
Vermont, 155. 

Washington, 31, 79, 87, 190. 
Wisconsin, 35, 47. 
Wyoming, 31, 42, 80, 86, 105, 108, 

190. 



AMERICAN CIVIL CHURCH LAW. 

By Carl Zollmann. 

This work of 473 large 8vo pages,, published in 1917 by Colum- 
bia University as Volume 77 of Studies in History, Economics, and. 
Public Laiu, is the first attempt compactly and logically to set forth 
the legal aspects of American church-relations as they have been 
developed, defined, and illustrated by the Federal and State con- 
stitutions, by hundreds of statutes, and by thousands of decisions, 
and rests on a direct study of the primary sources of information 
begun more than eight years ago. It contains the following seven- 
teen chapters: 

1. Religious Liberty; 2. Forms of Corporations; 3. Nature of 
Corporations; 4. Powers of Corporations; 5. Church Constitutions; 
6. Implied Trusts; 7. Schisms; 8. Church Decisions; 9. Tax Ex- 
emptions; 10. Disturbance of Meetings; 11. Contracts; 12. Clergy- 
men; 13. Officers; 14. Dedication and Adverse Possession; 15, Pew 
Rights; 16. Church Cemeteries; 17. Methodist Episcopal Deed. 

"The volume is a treasure-house of information diflBcult other- 
wise for the clergyman to find. It is the sort of volume every 
minister ought to have. I am going to recommend it heartily 
and unreservedly." _, 

ShAILER MATHEV^rS, 

Dean of the Divinity School, 

University of Chicago. 

Cloth-hound, $Jf..OO, net. Paper cover, $3.50, net. 

CONCORDIA PUBLISHING HOUSE, 
St. Louis, Mo. 



